Doing Right by Those Who Labor for Justice

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Doing Right by Those Who
Labor for Justice
Fair and Equitable Compensation for Attorneys
Serving the Commonwealth in its Criminal Courts
A Report of the Massachusetts Bar Association
Commission on Criminal Justice Attorney Compensation
May 2014
INTRODUCTION
In December 2013, Massachusetts Bar Association (MBA) President Douglas K. Sheff
created the Massachusetts Bar Association Blue Ribbon Commission on Criminal Justice
Attorney Compensation (“the Commission”) in response to his frustration and concern over the
declining economic status of lawyers working in the commonwealth’s criminal justice system due
to the confluence of extraordinary personal debt from higher education loans and declining
compensation in real terms, when adjusted for inflation. The Commission examined the salary
structure of prosecutors (assistant district attorneys and assistant attorneys general) and public
defenders (full-time staff attorneys employed by the Committee for Public Counsel Services
(CPCS), and private attorneys working through the bar advocate programs or appointed directly
by the courts).
The Commission examined and compared the salaries of Massachusetts criminal justice
attorneys to those of attorneys performing the same functions in comparative jurisdictions, to
publicly employed attorneys not involved in the criminal justice system and to attorneys in
private practice.
The Commission was chaired by Richard P. Campbell of Boston, MBA past president
(2011–2102) and Fellow of the American College of Trial Lawyers. Commission members
included Hon. Suzanne DelVecchio, former chief justice of the Superior Court (ret.); Hon.
Charles Johnson, past chief justice of the Boston Municipal Court; Hon. William Delahunt, past
member of Congress and former district attorney for Norfolk County; Gerry Leone of Boston,
former district attorney for Middlesex County; Denise Squillante of Fall River, MBA past
president (2010–2011); Rick Lord of Boston, Associated Industries of Massachusetts; Randy
Chapman of Chelsea, MACDL past president (2007–2009); and Martin Kane of Boston, past
president of the Middlesex County Bar Association and former assistant district attorney for
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Middlesex County.
Commission counsel was Martin W. Healy, MBA chief legal counsel and chief operating
officer. Additional support was provided by Lee Constantine, MBA director of policy and
operations.
ACKNOWLEDGMENTS
The Blue Ribbon Commission on Criminal Justice Compensation stands on the
shoulders of renowned members of the bench and bar who responded to MBA President
Michael Mone’s December 1993 call for an evaluation of compensation for lawyers in the
criminal justice system. In December 1994, the Massachusetts Bar Association Commission on
Criminal Justice Attorney Compensation (“Callahan Commission”) issued its report, Striking a
Balance: Adequate Compensation – Effective Representation Fair Compensation for Criminal Justice Attorneys.
It was chaired by John M. Callahan of Northampton, MBA past president and former district
attorney for the Northwestern District. The Callahan Commission’s members included Frances
Burns, professor of law at Boston University; Anthony Fugate, criminal defense attorney; Ira A.
Jackson, senior vice president for Bank of Boston and former commissioner, Massachusetts
Department of Revenue; David H. Locke, former minority leader of the Massachusetts Senate
and practicing attorney; Lillian Miranda, justice of the Juvenile Court and former MBA vice
president and staff attorney for the Hampshire County Bar Advocate Program; and J. Owen
Todd, practicing attorney and former Superior Court justice. Commission counsel was Martin
W. Healy, then MBA assistant general counsel. The work of the Callahan Commission was
extraordinary and invaluable to our Blue Ribbon Commission. We make full use of our
predecessor’s work product in this report. Indeed, it is a cornerstone of our report.
We also wish to thank the following individuals who provided information and data that
helped to conduct its study in a thorough and analytical manner:
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Hon. Paula M. Carey
Chief Justice
Trial Court
John Adams Courthouse
One Pemberton Square
Boston, MA 02108
Hon. Paul Dawley
Chief Justice
District Court Department
24 New Chardon Street
Boston MA 02114
Hon. Jonathan Blodgett,
President of the Massachusetts District Attorneys Association
Essex County District Attorney
Ten Federal Street
Salem, MA 01970
(also submitted written testimony given to the Joint House and Senate
Committee on Ways & Means, March 7, 2014)
Hon. David Sullivan
Northwestern District Attorney
One Gleason Plaza
Northampton MA 01060
Hon. Daniel Conley
Suffolk County District Attorney
One Bulfinch Place
Boston, MA 02114
(also submitted written statement)
Hon. Timothy Cruz
Plymouth County District Attorney
32 Belmont Street
Brockton, MA 02303
Hon. Michael O’Keefe
Cape and Islands District Attorney
3231 Main Street
Barnstable, MA 02630
Anthony Benedetti, Esq.
Chief Counsel
Committee for Public Counsel Services
44 Bromfield Street
Boston, MA 02108-4909
(also submitted written testimony given to the Joint House and Senate
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Committee on Ways & Means, February 11, 2014 and supplemental written
statement to the Commission at hearing )
Edward Bedrosian, Esq.
First Assistant Attorney General
Office of the Attorney General
One Ashburton Place
Boston, MA 02108
Jennifer Franco, Esq, acting executive director, Massachusetts District Attorneys
Association
Elizabeth A. Lunt, President, Massachusetts Association of Criminal Defense
Lawyers
Guy Larock, Esq., President, Massachusetts Association of Court Appointed
Attorneys
Michele Rioux, Esq., Treasurer, Massachusetts Association of Court Appointed
Attorneys
Rachel Stroup, Esq., Massachusetts Employment Lawyers Association,
Chauncey Wood, Esq., Suffolk Lawyers for Justice
David Hoose, Esq., Sasson Turnbull Ryan & Hoose, Northampton, counsel for
plaintiff, Lavallee v. Justices in the Hampden Superior Court, 442 Mass. 228 (2004)
Michael Hussey, Esq., Worcester, Committee for Public Counsel Services,
Fellow of the American College of Trial Lawyers
Jennifer Sunderland, Esq., Committee for Public Counsel Services
D’Andre Fernandez, Esq., formerly of Committee for Public Counsel Services
Kelly Cusack, Esq., Committee for Public Counsel Services
David Grimaldi, Committee for Public Counsel Services
Chris Dearborn, Esq., Committee for Public Counsel Services
Anuj Khetarpal, Esq., Committee for Public Counsel Services
Cara Matern, Esq., Committee for Public Counsel Services
Michelle Yee, Esq., Committee for Public Counsel Services
Amanda Moran, Esq., Committee for Public Counsel Services
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Celeste Laramie, Esq., Committee for Public Counsel Services
Matthew Gilbertson, Esq., Committee for Public Counsel Services
Jodi Rich, Esq., Bar Advocate
Maureen Booker, Esq., Bar Advocate
Victoria Ranieri, Esq., Committee for Public Counsel Services
Kari Cincotta, Esq., Committee for Public Counsel Services
La Mer Kyle-Griffiths, Esq., Committee for Public Counsel Services
Written statements were sent to the MBA’s Blue Ribbon Commission by the following
individuals:
Brian D. Fleming, Esq.
Laurie Caswell, Foster Parent Caring for Child Through CPCS
Debra Beard-Bader, Esq., Committee for Public Counsel Services
Laura Grimes, Esq., Bar Advocate, New Bedford
Cathy Tolson, Real Estate Agent, Northborough
Lynn Turcotte, Esq., Bar Advocate, Worcester
Joe Visone, Esq., Criminal Defense Attorney, Connecticut
Shelli Hamer, Esq., President, Bar Advocates of Worcester County
Edward Sheridan, Esq., Bar Advocate, Clinton
James Yates, Esq., Bar Advocate, Leominster
Sarah De Oliveira, Esq., Bar Advocate, Framingham
Norma Wassel, LISW, Director, Social Service Advocates, Committee for Public
Counsel Services
Joshua Hanye, Esq., Committee for Public Counsel Services.
Written statements delivered to the Commission were also reviewed and considered:
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Gabrielle Gurley, article entitled, “Public Defender Blues: The taxpayer tab for
indigent defense keeps rising, but the lawyers who do the work are among the
lowest paid in the country.” CommonWealth Magazine, Winter 2014.
Committee for Public Counsel Services Exhibits and Statements given to
Representative Brian Dempsey, Chairman, House Committee on Ways & Means,
February 6, 2014.
Committee for Public Counsel Services Letter to His Excellency Governor
Deval Patrick (with attachments) regarding “Committee for Public Counsel
Services FY 2015 General Appropriations (Budget) Request, dated December 3,
2013.
The Commission paid particular attention to comparisons of the compensation paid in
states with populations, economies and jurisdictional units analogous to Massachusetts. The
Commission also considered compensation levels afforded attorneys employed by the
commonwealth’s governmental agencies that are not directly involved in the criminal justice
system, and to the salaries of attorneys working in private practice.
EXECUTIVE SUMMARY
The most fundamental role of government is the protection of its citizens’ lives and
livelihood, property, freedom, and well being. Life, liberty, and the pursuit of happiness is
America’s promise to each and every one of us. The rule of law, the right to trial by jury, open
courtrooms, an independent and properly funded judiciary, and accountable public officials are
cornerstones of our democracy. Some years ago, the American Bar Association (ABA) found the
words to make the point effectively: “Freedom, justice, and equality — without lawyers they’re
just words.”
The criminal justice system is, of course, central to the government’s commitment to
protect our life, liberty, and the pursuit of happiness. Whether resulting from poverty, mental
illness, inadequate education, lack of opportunity, or innate evil, crime is simply a fact of life that
can directly impact any citizen, and that concerns every citizen emotionally and spiritually. In
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many areas of Massachusetts, particularly our “Gateway Cities,” crime threatens to destroy the
very fabric of family and community life. To meet its commitment to us and to protect our lives,
property, and basic liberties, the government must operate a criminal justice system that is
transparent, competent, swift, efficient, and fair. Skilled, motivated, and experienced
professionals responsible for each aspect of the criminal justice system are essential if the
government is to meet our expectations and needs.
Scholarly, experienced, and hard-working judges are critically important. But they cannot
run the system alone. They need qualified, experienced, properly compensated (and thereby
dedicated) clerks, court officers, and probation officers in the courts with them.
Judges also need talented, experienced, and dedicated assistant district attorneys and
assistant attorneys general to prosecute vigorously those who commit murder, rape, and other
crimes. And judges need (and the U.S. and Massachusetts constitutions mandate) competent,
experienced, and dedicated defense attorneys to defend the criminally charged. Absent
prosecutors and criminal defense lawyers there is no “system” in criminal justice; indeed, there is
likely only crime and vigilante punishment.
We, the citizens of the Commonwealth of Massachusetts, are entitled to a properly
functioning criminal justice system and demand nothing less from our government.
Unfortunately, the government has, over the past decade, faced catastrophic financial times
resulting in the erosion of our criminal justice system to the point of dysfunctionality because it
has been drained of necessary funding.
Assistant district attorneys, assistant attorneys general, public defenders, and bar
advocates (lawyers appointed to defend indigents) are grossly underpaid, earning far less than
their counterparts in comparative jurisdictions across the country. They are paid less than
lawyers of comparable experience employed by the state in non-criminal justice positions. They
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are paid substantially less than criminal justice attorneys working for the federal government.
And they are paid far less than their colleagues working in private practice in small, medium, and
large private law firms in Massachusetts.
The Commission fully appreciates that public service is a noble undertaking that entails
long hours, hard work, and personal sacrifice. All prosecutors and criminal defense lawyers
willingly signed on to that proposition when they selected their profession. Obviously, they have
not pursued their careers to get rich. They do expect, and reasonably so, that their chosen career
would compensate them sufficiently, such that they could pay off college and law school loans,
afford to live away from their parents’ homes, get married, buy a house, and raise a family. The
present salaries paid to attorneys working in our criminal justice system are so inadequate that
they cannot meet the financial obligations attendant to everyday, normal living. The unvarnished
truth is the compensation is so poor that it drives these lawyers away from the criminal justice
system or into the ranks of the working poor. The evidence collected by the Commission
overwhelmingly supports this most unfortunate conclusion. Massachusetts prides itself as a
national leader in most fields, including the law. But in compensation of criminal justice lawyers,
it ranks dead last.
The present rates of compensation paid to assistant district attorneys, assistant attorneys
general, public defenders, and bar advocates are unfair and unjust to the women and men
performing this essential and invaluable public service, and to the citizens of the commonwealth
who need and deserve a justice system that works properly as our forbearers intended.
Our courts were in crisis for years and the MBA has stepped up to lead the long but
necessary effort to begin restoring appropriate funding. The MBA now turns to fair and
equitable compensation for those attorneys responsible for making the criminal justice system
work. The need to act is obvious, and the time to act is now.
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Accordingly, this commission recommends that:

Starting salaries for assistant district attorneys, assistant attorneys general
and full-time public defenders (attorneys in the Public Counsel Division
of CPCS) be raised immediately to $55,000, which must be fully funded
with commensurate increases for more experienced lawyers, as detailed
below.

Budget line items applicable to compensation of lawyers employed by
District Attorneys offices, the Office of the Attorney General, and
CPCS be increased sufficiently in the aggregate so as to allow for a 20%
increase in salaries.

Steps should be taken to keep the levels of compensation of full-time
criminal justice attorneys at least equal to that of other public sector
attorneys. Salaries must be indexed to cost-of-living increases.

Rules and practices of CPCS applicable to bar advocates that treat these
lawyers differently than and more inferior to full-time public defenders
should be eliminated. Specifically, the following rules and practices
should be eliminated:
o The cap on the number of hours that may be charged annually
by a bar advocate;
o The cap on the number of hours that may be charged daily by a
bar advocate;
o The cap on the number of hours recorded in a calendar year that
prohibits a bar advocate from taking new assignments;
o The cap on the number of hours that may be charged by a bar
advocate for wait time imposed by a court;
o The prohibition (or limitation) on charging time for reasonable
travel;
o Reimbursement for travel and other expenses at rates lower than
extant federal income tax approved rates;
o Mandating CLE courses for bar advocates without reimbursing
them for costs of the courses and without compensating them
for the time to attend such courses; and
o Mandating that bar advocates maintain private law offices the
costs attendant to running such office is reimbursed by CPCS.

The following critical areas should be addressed:
o Compensation for bar advocate programs should be fair and
reasonable and meet prevailing standards in the relevant
communities. CPCS should adopt as a standard a minimum
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adjusted gross income commensurate with a moderate standard
of living for bar advocates and then set its schedule of fees so as
to assure that bar advocates can live to that standard. The
Commission believes that average starting salaries for new law
graduates at private law firms ($75,000 per year) and the average
annual recorded hours demanded by most private law firms
from employed lawyers (2,000 hours per year) are appropriate
standards. Hourly rates that allow bar advocates to achieve this
adjusted gross income (i.e., after paying fixed expenses in the
relevant community) are the only rates that are fair and
reasonable. Rates that are lower are financially abusive to bar
advocates and assure compensation that cannot sustain a
moderate standard of living. Appointed counsel rates in noncapital federal criminal cases ($125 per hour) should be used as a
guide.
o Hourly rates for bar advocates must be structured such that
serious felony cases in Superior Court attract participants (i.e.,
the hourly rate differential between Superior Court and District
Court must be sufficiently higher to entice bar advocates to seek
out the assignment).
o Hourly rates for bar advocates should be reviewed whenever a
substantial change in the cost of living is experienced (e.g., in
periods of high inflation) and on a regular biennial period.
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ASSISTANT DISTRICT ATTORNEYS
“Our prosecutors are the lowest paid professionals in the courtroom, the
lowest paid starting attorneys in the commonwealth, and the lowest paid
prosecutors in the country. Repeatedly, we have explained our alarming
attrition problems, particularly with retaining mid-level prosecutors.”
Testimony of District Attorney Jonathan W. Blodgett, Essex County District Attorney and
President of the Massachusetts District Attorneys Association, to the Joint Ways & Means
Committee, March 7, 2014.
Referring to assistant district attorneys leaving for substantial pay increases in other state
agencies:
“It is not an understatement when I tell you that my office is a revolving
door of prosecutors. We expend scarce resources in this constant cycle of
recruitment, hiring, and training, and once prosecutors become
experienced and really good at their jobs they are forced to leave the job
they truly love. This is not just financially wasteful and inefficient but
clearly detrimental to the best interests of justice.”
Testimony of District Attorney Daniel Conley, Suffolk County District Attorney, to the
Commission on March 27, 2014.
Responsibilities
The 11 district attorney offices in Massachusetts operate from 115 different work sites,
employ 714 prosecutors and 249 advocates, and prosecute more than 300,000 cases annually.
The average prosecutor carries a staggering caseload of 420 cases. Historically, the District
Attorneys (1) represent the commonwealth in criminal matters in the Superior Court, and in the
six-person jury and bench sessions in all district courts, and Juvenile Courts; (2) prosecute
appeals in the Appeals Court and the Supreme Judicial Court; (3) handle probation surrenders,
parole hearings, and sexually dangerous person proceedings; (4) investigate the circumstances of
all suspicious deaths and prosecute when there is evidence of criminal conduct; (5) investigate
and prosecute
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cases of child abuse and investigate and prosecute cases of neglect that are referred to the district
attorney by the Department Children and Families; (6) investigate and prosecute cases of neglect
and abuse (economic and otherwise) against the elderly that are referred to the district attorney
by the Department of Elder Services; (7) investigate and prosecute cases of abuse or neglect
against the physically and/or mentally handicapped, including mental health commitments; (8)
provide technical and legal support to law enforcement; and (9) conduct juvenile diversions.
Over the past few decades, district attorneys have created specialized teams that focus on
particular categories of crimes. These units include: crime prevention and control units of state
police officers assigned to district attorney offices who conduct investigations into major crimes;
white collar crime units that investigate and prosecute economic and other white collar crimes;
repeat and serious offender units that “fast track,” or speedily prosecute, certain cases with the
intention of removing dangerous criminals from our communities; units that investigate all types
of sexual and physical abuse of children, as well as provide support services for the victims and
their families; civil rights units that combat civil rights violations, including hate crimes; elder
abuse investigation and prosecution units; domestic violence units; drug task forces; and victim
witness programs which were instituted in order to guide victims through the criminal justice
system.
Assistant district attorneys with 0-2 years experience carry a caseload consisting of
various district court matters, such as felonies and serious misdemeanors, including domestic
violence cases, motor vehicle offenses (such as operating to endanger), drunk driving offenses,
assault and battery with a dangerous weapon, larcenies, receiving stolen property, breaking and
entering a building in the nighttime, malicious damage of personal property, possession with
intent to distribute drugs, and indecent assault and battery. Ideally, assistant district attorneys
with two to three years experience will handle district court jury trials. However, in recent years,
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due to difficulty retaining more experienced prosecutors, many jury trials are now handled by
relatively new assistant district attorneys, or sometimes even student prosecutors.
Assistant district attorneys with approximately three to five years experience are assigned
to a great variety of tasks. Some are assigned to the Superior Court and begin with entry level
Superior Court cases, e.g., non-violent felonies with little or no serious personal injury. These
lawyers progress to more serious felonies, including crimes of violence. They may be assigned to
supervisory responsibilities in the District Court. Some lawyers are assigned to specialized units,
e.g., child abuse, domestic violence, or special investigations. Others do appellate work, handle
open meeting law issues and render other legal opinions. Most participate in a rotation
assignment where they are available 24 hours a day to assist with search warrants and other
emergency legal matters. Many prepare and present training programs for law enforcement
personnel as well as engage in other educational and informational programs within the
community. By the fourth and fifth years, many assistant district attorneys have progressed to
key positions. Most have become experienced and highly competent trial lawyers who have
handled a number of significant criminal trials.
Assistant district attorneys with five to 15 years experience usually handle the most
serious and complex matters in their particular areas of expertise. They are normally either at
supervisory levels in the District Court, office administrators or trying felonies in the Superior
Court. The most able trial lawyers are assigned to handle a wide variety of the most serious and
violent cases including homicide, aggravated rape, armed home invasions, elderly abuse, career
criminal prosecutions, and those cases involving particularly challenging legal or evidentiary
issues.
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Compensation of Assistant District Attorneys
The starting salary of an assistant district attorney in Massachusetts is $37,500.
Thereafter, the salary will depend upon experience, work load, difficulty of work load, and
performance. However, starting salaries for government agency lawyers (“Counsel I”) range
between $54,946 and $79,659. Starting salaries in the “Counsel II” grade range between $62,978
and $80,000. In addition, the union contract for these agency lawyers mandates an annual salary
increase of an additional 5%. The salary differential in inexplicable and patently unfair. The
“revolving door of prosecutors” described by District Attorney Conley and its attendant waste
of resources can only be fixed by achieving parity in starting salary among all government
agencies.
The failure of the Executive and Legislative branches to increase the starting salaries at
the bottom of the criminal justice system has had a direct effect upon the progress of salary
schedules for assistant district attorneys. There have been some additional assistants appointed
and some improvement in some assistants’ salaries. However, the salary paid assistant district
attorneys over the last 10 years has lagged far behind increases in the cost of living, and the
struggle of assistant district attorneys to meet their expenses and support themselves and their
families has become even more difficult.
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PUBLIC DEFENSE COUNSEL
I graduated from Boston College Law School in 2007. After six and a half
years as a public defender, my salary is roughly $53,600 a year. I, like my
colleagues, realize many people in Massachusetts are paid less than public
defenders. Every single day I work with poor people who don’t have a
dime to their name. And I know many people struggle, stay in the middle
class, with less than my salary. But $53,600 a year is far too low of a salary
to allow me to stay with CPCS. I have over $120,000 in student loans. I
have a 2003 Toyota Corolla with 128,000 miles on it. I live in a modest
apartment that I share, perhaps tellingly, with another public defender
from my office just to make the ends meet. I had a part-time job for five
years as a public defender selling wine and liquor at a wine shop until
about a year ago when I really had to leave because my social life was
nonexistent and I really needed extra time to work on my cases. I live no
better than I did when I was a first-year law student at BC. In fact, I
probably live less well. I have no savings. I can’t save anything for
retirement, and there is no end in sight.
Testimony of CPCS Attorney David Grimaldi, Esq., given to the Commission on March 27,
2014.
Responsibilities
Massachusetts General Laws Chapter 211D, section 9(a), mandates that Public Counsel
Division attorneys provide, “Vertical or continuous representation at pretrial and trial stages by
the attorney assigned or appointed, whenever possible.” This provision fundamentally shapes
the responsibilities of the Public Counsel Division attorney staff.
Historically, in the Public Counsel Division, every lawyer is a Superior Court litigator.
Recently, the Executive and Legislative branches have placed a greater emphasis on establishing
full time District Court and Juvenile Court public defenders. However, regardless of whether the
full time public defender is assigned to the Juvenile, District or Superior Court, every newly
hired lawyer receives a rigorous, month-long training program that includes intensive practice
exercises. Upon completion of the program and assignment to a local office, the attorney is
supervised and receives ongoing additional training. Indeed, the first case assigned to a new
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public defender may be a Superior Court felony. The need to attract and retain a staff composed,
in large part, of Superior Court specialists is the most serious challenge facing the Public Counsel
Division.
Chapter 211D mandates for the division of cases between the Public and Private
Counsel divisions. The Public Counsel Division is directed to handle Superior Court cases and
probable cause felony cases in the District Court, except when there are codefendants in the case
or a conflict of interest with another client. The staff attorneys are salaried employees. The
Private Counsel Division is made up of attorneys in private practice. These attorneys are either
members of a bar advocate program or are certified to take cases and are selected from a list
provided to the court by CPCS.
Private attorneys handle the majority of criminal cases over which the Juvenile and
District courts have final jurisdiction, as well as many cases assigned by the Probate and Family
Court and the Housing Court. Private counsel are compensated through an hourly fee structure
that is stratified by court and case type. The current rates have not been increased in 10 years.
CPCS is also responsible for the establishment of standards for counsel. It is required to
“establish standards for the public and private counsel divisions which shall include (a) vertical
representation, (b) required training, (c) caseload limitation, (d) investigative service, (e) social
service, (f) expert witness availability, (g) support service and (h) adequate supervision.” Finally,
CPCS must monitor and evaluate compliance with the standards and the performance of
counsel to ensure competent representation.
CPCS is also responsible for the development of training programs for both the Public
and Private Counsel divisions, for the appointment of counsel in murder cases and all appellate
cases, and for compensating attorneys who receive appointments under the auspices of the
private counsel division, a task previously handled by the Trial Court. In addition, CPCS has the
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responsibility to establish rates of compensation payable to private attorneys, but only after
holding public hearings and subject to appropriation.
CPCS treats private defense lawyers as “independent contractors,” who are responsible
for their own expenses, including malpractice and health insurance. However, this practice
appears highly questionable. The Legislature has enacted very strict laws governing the financial
relationships between employers and employees intended to protect its workers from abusive
employment schemes that (1) deprive workers of benefits, (2) lay off employers’ ordinary
business expenses on to workers, and (3) evade proper wages by misclassifying them as
“independent contractors.” Massachusetts law measures the real relationship between worker
and employer by means of a three-part conjunctive test with the burden of proof on the
employer. In other words, the worker will be deemed an employee if the employer fails to
establish all three parts of the test. Failure to meet any one of the prongs of the test is fatal to the
employer. The three prongs of the test are:

The worker must be free from control and direction in performing the
service;

The service performed by the worker must be outside of the usual course
of business of the employer; and

The worker must be engaged in an independently established trade,
occupation, profession, or business as the service provided. G. L. c. 149 §
148B.
It is likely that CPCS may be governed by the independent contractor laws of the
commonwealth. If so, it is patently clear that CPCS would fail the three prong test under the
independent contractor statute if applied to it. CPCS exercises significant dominion and control
over its panel of private counsel (i.e., the bar advocates). It dictates hours, mandates offices,
insurance, and CLE requirements, and closely supervises the day-to-day work of bar advocates.
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Bar advocates are hardly free from CPCS’ control and direction in the performance of services
provided to it. It is also crystal clear that the services provided by bar advocates fits entirely in
the wheelhouse of CPCS’ core business: providing a defense to indigent people charged with
crimes. Even if CPCS were to get a free enforcement pass for this important employment law,
the implications of its application to bar advocates manifest the gross unfairness of the
compensation paid to them — retirement benefits; health, dental, and life insurance; vacation
and disability pay; office and secretarial expenses; travel costs; wait time; compensation for hours
not worked; and so on. Bar advocates routinely work evenings, weekends, and even the month
of July pro bono due to unfair work rules imposed by the government through CPCS rules and
practices. Fair compensation, meaning fair hourly rates for work performed, must include the
fair value of these expenses and work time. Otherwise, the government is treating the bar
advocates in ways it declares illegal for all other Massachusetts employers.
Compensation of Public Counsel
CPCS public defender salaries in Massachusetts lag far behind the salaries offered by the
federal public defender in Boston and every other public defender office in the nation. The
salaries are pathetic and drive lawyers from this otherwise noble practice to the detriment of the
state and the impoverished clients they are required to represent.
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PRIVATE COUNSEL DIVISION COMPENSATION (BAR ADVOCATES)
“Making a comparison to just the district attorney’s office, a district
attorney, with 25 years of experience is getting health insurance and a
pension that we are not getting, is getting a secretary, an office, is getting
all their office supplies paid for, and I know that the district attorneys with
25 years experience are well over $100,000. I’m not anywhere near there. …
I know for certain that there are bar advocates out there who, after they
do their Schedule C, the money that they are making, they would be
eligible for free health care. As I look at the MassHealth connector, many
bar advocates, particularly those with families, would be eligible for
MassHealth. Most of them don’t want to do that. Most of them don’t want
to put themselves on the dole once again of the state. I know there was a
time when I was eligible for MassHealth, but I took 14 hours a month, and
that’s what it is costing me right now. Fourteen hours a month is what I
have to work just to pay for my health insurance.”
Testimony of Michele Rioux, Esq., bar advocate and Treasurer of Massachusetts Association of
Court Appointed Attorneys, to the Commission on March 27, 2014.
Section 11 of Chapter 211D requires the CPCS to “establish rates of compensation
payable to appointed or assigned counsel in the private counsel division, and to review such
rates at least every two years.” The statute provides that such rates are “subject to appropriation”
of the necessary funds. The existing rates were established in 2005 following recommendations
made by the “Commission to Study the Provisions of Counsel to Indigent Persons in
Massachusetts,” also known as the Rogers Commission. The current hourly rates have not been
changed in many years. And the bar advocates are being driven to financial ruin as a result.
The Commission believes that the present rates of compensation are confiscatory and
adversely impact an indigent client’s right to counsel.
As demonstrated by the ABA’s August 1993 publication, The Indigent Defense Crisis,
inadequate funding of assigned counsel services leads directly to ineffective representation:
“Even the most diligent and dedicated attorney, when inadequately
compensated, might have to forgo necessary case preparation and
consultation with expert witnesses and critical witnesses may be
overlooked without proper investigative resources.”
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The Indigent Defense Crisis, at 6.
Standard 5-2.4 Compensation of the ABA Standards on Providing Defense Services
states: “Assigned counsel should be compensated for time and service performed. The objective
should be to provide reasonable compensation in accordance with prevailing standards.” The
commentary following the standard states:
“This standard thus rejects the view that lawyers are required to provide
pro bono legal services in criminal cases. ...[t]he President’s Crime Commission
also rejected the notion that members of the bar should be required to provide
defense representation without adequate payments for their time and efforts.”
The President’s Commission on Law Enforcement and Administration of Justice in its
1967 Task Force Report: The Courts reported:
“Assigned counsel should be paid a fee comparable to that which an
average lawyer would receive from a paying client for performing similar
services. Most presently proposed standards for compensation of assigned
counsel call for a fee which is less than could be commanded in private
practice. It has been argued that these standards are sufficient because it is
part of a lawyer’s obligation as a member of the bar to contribute his services
to the defense of the poor. But these standards unavoidably impose a stigma
of inferiority on the defense of the accused.... It is undesirable to perpetuate a
system in which representation for the poor seems to be obtained at a
discount.”
Task Force Report: The Courts, at 61.
In private law firms, hourly rates are established, in part, by determining the desired
adjusted gross income the lawyers controlling the business wish to earn, the amount of work
that must be performed to achieve the desired gross revenues, and the costs of doing business to
get to the end result. Bar advocates operate under the same set of economic rules. They have to
work a number of hours at certain rates in order to produce gross revenues that, after expenses,
lead to a desired end result. What is missing in this context is a generally accepted adjusted gross
income for public defenders operating outside the zone of protection provided to direct
employees by CPCS. The government and bar advocates should identify the adjusted gross
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income that would provide a modest but acceptable standard of living and from that figure
determine the hourly rates that will drive them to the appropriate end result. The Commission
believes that the average starting salary for newly hired lawyers in private law firms (currently
$75,000) and the average mandated work load for those lawyers (typically 2,000 hours) are
excellent starting points in determining appropriate hourly rates. In the absence of an accepted
process as described herein, the Commission believes that the appropriate hourly rate for bar
advocates going forward is the non-capital case rate used for appointed federal defenders ($125).
In addition, CPCS rules and practices that end up forcing bar advocates to work without
compensation should immediately change. Specifically, caps on annual hours, hours at which
new assignments cannot be taken, daily hours, wait time hours, and the like appear to be born
out of an erroneous belief that bar advocates are cheaters gaming the system and that oppressive
oversight is a good business practice. These rules and practices are counterproductive and
unnecessary.
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COMPARABLE SALARIES: MASSACHUSETTS IS AT THE BOTTOM AND RANKS
LOWER THAN ARKANSAS AND MISSISSIPPI
Sadly, the lowest paid person in a Massachusetts courtroom is a newly minted assistant
district attorney. Working up from the bottom, the next lowest paid employee in the courthouse
is the custodian. And the third lowest paid person in the courtroom is the public defender. The
comparative compensation of courtroom personnel speaks volumes about the stark lack of
fairness:
COURTHOUSE PERSONNEL SALARIES
$144,694 Judge
$77,496 Court Reporter
$72,703 Research Attorney
Probation Officer
$66,238 Law Librarian
$66,059 Sessions Clerk
$57,711 Administrative Assistant
$56,217 $54,365 Court Officer I
$42,834 Switchboard Operator
Public Defender
$40,000 Custodian
$38,796 Assistant District Attorney
$37,500 $0 $20,000 $40,000 $60,000 $80,000 $100,000 $120,000 $140,000 $160,000 22 | P a g e
Compensation unfairness to assistant district attorneys and public defenders is also
demonstrated by pay levels in other jurisdictions.
Prosecutorial
Prosecuting Attorney Salaries
Entry Level Compensation
$80,000 $70,000 $60,000 $50,000 $40,000 $30,000 $20,000 $10,000 $0 $73,000 $74,000 $60,000 $60,000 $52,000 $55,000 $56,000 $37,000 23 | P a g e
$62,000 Public Defenders
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COLLEGE AND LAW SCHOOL LOANS
“My name is Cara Matern. I am a staff attorney with the Children and
Family Law Division. So I represent children and parents in child abuse
and neglect cases, which I would define as multi-party, complex litigation
that can pretty much last years, very specific law, very, very unique rules of
evidence. I explain it that way to show just how vital it is for our clients
that the attorneys are well trained and experienced in child abuse and
neglect. Personally, I attended Loyola University in Chicago as a child law
fellow and I focused on child abuse and neglect. …
But I know we are here to discuss salary. So I will give you a little
breakdown of my stressful financial situation. My 2013 adjusted gross
income was $41,254. When I last checked on Monday, I owe $177,493.57 in
student loans. I will give you a little breakdown of two weeks in my life.
February 28th I was paid about $1,400. I had expenses that pay period,
including rent, totaling $1,215. That leaves a little under $200. Then I was
paid March 13, $1,371. That pay period I had expenses totaling $1,264.
That’s a little more than $100 left. I obviously have to rely on my parents a
lot to supplement. And, to your point, Chairman Campbell, my dad is a
retired post office worker and my mom is an RN. … I work with
traumatized clients. I, myself, have been traumatized at this work, and
then I go home and I worry about and have anxiety about my financial
situation. …
I work the extra hours that I don’t get any compensation for. I do miles of
driving. I put wear and tear on my car. I’m not always sure I can even
keep up with the regular upkeep for my car. Certainly if there was any sort
of major repair needed, I would have to rely on my parents for that. Note
on travel. I do submit a travel voucher each month, but I get 30 cents per
mile. The IRS Federal rate for business travel is 56 cents per mile. I did
have a second job for a little bit, but I didn’t really have time for myself,
my friends, my family. …
I have increased work hours and increased stress but my salary keeps the
same. It is also the same as a result of where I am in my life because I
can’t save any money. So I don’t know if I could afford a wedding. I
definitely couldn’t start a family or buy a home. … So I don’t know if I will
ever be able to afford those things. I wanted to work with families and
child protection since college. I spent a lot of years and a lot of money
preparing and dedicating myself for this. And it is sad, due to a lack of
funding and a lack of salary, I might not be able to do this long term.
I was hired in a class of 35 dedicated individuals in August of 2011.
Everyone there was ready to impact the system, impact the families. Now
there is only 17 of us left. And I know for a fact that that number is going
to dwindle. I think it is really at the expense of our clients at the end.”
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Testimony of CPCS Attorney, Cara Matern, Esq., given to the Commission on March
27, 2014.
When evaluating the salaries paid to prosecutors and public defenders in the criminal
justice system, the immensely burdensome costs of college and law school education must be
considered, as well as the fact that many law school graduates, by the time their education is
completed, have amassed substantial educational loan debts. CPCS published data from its
“student loan debt survey.” The results are staggering when one considers the meager wages
paid to CPCS full-time lawyers.
Average Student Loan Debt
$140,000
Attorneys with Debt Between $100,000 and $360,000
67%
Attorneys with Outstanding Student Loan Debt
74%
Attorneys Working a Second Job
37%
Attorneys Financially Supported By Family
73%
The CPCS lawyer pro forma ($40,000 salary):
Gross Biweekly Pay
$1,538.46
Deductions (taxes, retirement, health and dental insurance)
$450.69
Take Home Pay
$1,087.77
Average Monthly Payment on Student Debt
$504.00
Net Disposable Income (for Everything Else)
$1,852.84
A one bedroom apartment in Quincy or Malden and a rundown, second-hand car would
handily wipe out that above net disposable income. Sustenance is another matter altogether.
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Prosecutors and defense attorneys need to eat. And they need a life beyond the workplace. The
government cannot expect young, capable lawyers to remain in jobs that cripple them financially
and leave them with no time for their families and no means to pursue interests and activities
outside of their work.
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CONCLUSION
The Commission finds that present levels of compensation paid to attorneys who work
in the commonwealth’s criminal justice system are inadequate and inequitable.
The Commission has heard from many prosecutors and defense attorneys of the
personal and family burdens caused by the present inadequate compensation they receive for
performing their important and essential public roles. We thank all the attorneys and other
concerned individuals who took the time to share their personal experiences and
recommendations. These dedicated individuals accept that public service necessitates some
degree of financial sacrifice. However, a commitment by attorneys to serve society with integrity
and competence in our criminal justice system must be recognized by fair compensation. It is
our obligation to pay adequately those whom we constitutionally charge with making our system
of justice work.
Embarrassingly, other states put a higher premium on the services of their criminal justice
work force than does Massachusetts. By comparing the salaries of federal government attorneys
and state attorneys, a wide salary gap is revealed.
The inadequacy of public criminal justice attorneys’ salaries makes it extraordinarily
difficult to retain lawyers of skill, experience, and talent. Many exceptional attorneys are leaving
for better paying positions (often in other government agencies). The responsibilities and
accomplishments of our criminal justice attorneys deserve and demand better treatment. The
citizens of Massachusetts who are the victims of crime deserve the most competent prosecutors,
and the poor who are accused by the state of criminal behavior have a right to effective
assistance of counsel.
The people of Massachusetts and the Executive and Legislative branches must give real
meaning to the fundamental constitutional rights of fair and speedy trial and of effective
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assistance of counsel. For unless these rights are protected and given sustenance through a
commitment of adequate funding, our constitutional mandates will be no more than false
promises and the hopes and needs of our citizens will be ignored.
Respectfully submitted,
Richard P. Campbell, Chair
Hon. Suzanne DelVecchio
Hon. Charles Johnson
Hon. William Delahunt
Gerry Leone
Denise Squillante
Rick Lord
Randy Chapman
Martin Kane
Martin W. Healy, Counsel
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